Kantilal Ambalal Shrimali vs State Of Gujarat
2023 Latest Caselaw 756 Guj

   R/CR.MA/16711/2021                          ORDER DATED: 31/01/2023




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
         R/CRIMINAL MISC.APPLICATION NO. 16711 of 2021
              In R/CRIMINAL APPEAL NO. 1341 of 2021
                              With
               R/CRIMINAL APPEAL NO. 1341 of 2021
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                        KANTILAL AMBALAL SHRIMALI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR MANOJ SHRIMALI(2331) for the Applicant(s) No. 1
for the Respondent(s) No. 2
Ms. Asmita Patel, Addl. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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 CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
                  Date : 31/01/2023
                    ORAL ORDER

1.0. Heard Mr. Manoj Shrimali, learned advocate for the applicant- original complainant, Mr. Bhas Mankad, learned advocate for the respondent no.2- original accused and Ms. Patel, learned Additional Public Prosecutor for the respondent State.

2.0. This is an application seeking leave to appeal filed under Section 378(4) of the Code of Criminal Procedure challenging the judgment and order of acquittal dated 25.02.2019 passed by the learned 2nd Additional Chief Judicial Magistrate, Gandhinagar in Criminal Case No.4740 of 2017 whereby learned trial Court has recorded order of acquittal of respondent no.2 for the offences punishable under Section 138 of the Negotiable Instruments Act.

3.0. Mr. Shrimali, learned advocate for the applicant has invited attention of this Court to the reasons assigned by the trial Court

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while not entertaining the complaint. He has submitted that learned trial Court failed to consider the documentary evidences placed on record by the applicant - original complainant vide Exh. 9 to 15. He invited attention of this Court to the reasons recorded by the learned trial Court wherein the trial Court had in fact accepted the case of the applicant- appellant that the disputed cheque was issued from the account of the accused and the accused had not disputed the signature on the cheque. He, therefore, submitted that statutory presumption under Section 118 r/w Section 139 of the Negotiable Instruments Act had arisen in favour of the applicant-original complainant. He further submitted that having recorded this the trial Court ought not to have accepted the defence raised by the accused in cross- examination of the complainant by recording finding that the complainant had failed to establish the case as alleged in the complaint. He further submitted that the trial Court failed to take into consideration the admission of the accused available in the form of statement recorded under Section 313. He further referred to and rely upon the Memorandum of Understanding dated 16.7.2016 which is placed on record as Annexure B and submitted that in fact respondent no.2 had agreed in the said agreement to repay an amount of Rs.1,80,000/- borrowed by him against amount to be deposited for allotment of the flat by AUDA and said amount was agreed to be repaid by 10.08.2016. He therefore, submitted that in absence of payment being made by 10.08.2016, the respondent no.2 accused had issued cheque dated 03.08.2017, against such outstanding debt. He, therefore, urge this Court to grant leave to appeal. He alternatively urged that the complainant may be given one opportunity to lead this

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agreement as evidence and matter may be remanded to examine same.

4.0. On the other hand, present application has been vehemently opposed by Mr. Mankad, learned advocate for respondent no.2. He submitted that the trial Court has rightly recorded the order of acquittal by giving cogent reasons. He invited attention of this Court to the findings recorded by the trial Court, more particularly, the cross-examination of the complainant and has submitted that the trial Court has rightly appreciated the evidence and has not believed the complaint. He further submitted that so far as reliance made by the learned advocate for the applicant on statement under Section 313 is concerned, the same pertains to transaction entered into between the complainant and one Yogeshbhai Govindbhai Matalavala. He further submitted that said person has not been examined as witness. He further submitted that no document was brought on record by the complainant to establish any transaction between the complainant and the accused. In fact, the specific defence was raised by the accused that the cheque was misused by the complainant. He further submitted that upon appreciating the cross-examination of the complainant, the initial presumption which was drawn in favour of the complainant stood rebutted and it was for the complainant to prove his case beyond reasonable doubt by leading cogent evidence, more particularly, with regard to existence of debt as on the date of presentation of the cheque. He, therefore, prayed not to entertain present application seeking leave to appeal.

R/CR.MA/16711/2021 ORDER DATED: 31/01/2023

5.0. Learned Additional Public Prosecutor has requested to pass appropriate order considering the submissions tendered by the learned advocates for the respective parties.

6.0. This Court has closely examined the findings and reasons recorded by the trial Court while recording the order of acquittal. Considering the submissions made by the learned advocates, the Court notices that the specific defence was raised by the accused in cross-examination of the complainant. In opinion of this Court, the trial Court has rightly believed the defence raised by the accused. Considering the overall circumstances, the accused has been able to establish his defence. Based on preponderance of probabilities, more particularly, when there is a reference to the registration of FIR, the statement being recorded by the LCB Police Station during the investigation of such FIR and the complainant having admitted in the cross-examination about the transaction being entered into with Yogeshbhai Govindbhai Matalavala, the accused have successfully rebutted presumption. In such circumstances, probable defence of misuse of cheque could not be ignored. It was for the complainant to bring on record the material to establish the alleged transaction being entered into between the complainant and the accused. The learned advocate for the applicant for the first time has placed on record the so called Memorandum of Understanding dated 16.7.2016. However, on examination of such document, the Court notices that it is a notarized document and same has been executed in absence of any witness. The Court further noticed that there is reference to the transaction being entered into with Yogeshbhai Govindbhai Matalavala. In such

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circumstances, there is no scope of remanding the matter back to the trial Court.

7.0. It is settled legal position of law that initial presumption raised under Section 118 read with Section 139 of the Negotiable Instruments Act will continue until it is rebutted. The onus of proof that there was no consideration is on the complainant. In the peculiar facts and circumstance of the case, where specific defence was raised, the burden stood discharged and shifted upon the complainant to establish his case beyond reasonable doubt by leading cogent material. In opinion of this Court, no error of law or fact is committed by the learned trial Court, which calls for interference of this Court in the present application for leave to appeal. Present leave to appeal therefore, is not entertained and is dismissed.

In view of dismissal of application for leave to appeal, Criminal Appeal also stands rejected.

(NISHA M. THAKORE,J) KAUSHIK J. RATHOD